The UK Intellectual Property Office recently published a report entitled ‘Impact of Lookalikes: Similar Packaging and Fast-Moving Consumer Goods’. The lengthy report examines the area of lookalike consumer goods and attempts to provide a working definition of a ‘lookalike’ whilst examining the impact of such goods on consumers, retailers and brand owners.
The working definition of a lookalike adopted in the report is “a product sold by a third party which looks similar to a manufacturer brand owner’s product and, by reason of that similarity, consumers perceive the lookalike to share a greater number of features with the manufacturer brand owner than would be expected simply because the products are in the same product category”. A lookalike is often an own brand product that is devised in such a way as to imitate a branded product.
In an attempt to understand the ‘lookalike effect’ and the impact it can have on the sale of fast moving consumer goods, the UK Intellectual Property Office conducted consumer surveys alongside analyses of sales figures and stakeholder opinions.
The report concluded that almost as many consumers felt that they had benefitted from the lookalike effect as had been disadvantaged. However, the brand owners interviewed felt that lookalikes can have a negative effect in that sales may be lost to retailers selling own-brand products. The brand owners also generally considered that the law of passing-off provides insufficient protection as lookalikes do not typically generate confusion as to origin, a prerequisite to grounding a claim in passing-off.
The report considered that it is probable that the prevention of lookalikes is within the scope of the Unfair Commercial Practices Directive (2005/29/EC). It is therefore arguable that the right to an injunction under the Irish Consumer Protection Act 2007, which implements the Directive in Ireland, could provide brand owners with the means to defend themselves from the negative effects of lookalike goods. The corresponding UK legislation does not provide a private right of action due to a fear that any such right might result in the opening of floodgates. However, the report suggests that this should not be a concern, referring in this regard to the fact that there has been very little use of the remedy in Ireland.